A Copyight Law for Fashionistas

The fashion industry in the United States operates without copyright protection. Which means that although designers own trademarks on their logos, there’s no law that prohibits copying the cut of a garment. Fashion law expert Susan Scafidi talks about a new bill, the Innovative Design Protection and Piracy Prevention Act, that could change that.

BROOKE GLADSTONE: This is On the Media, I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. When Chelsea Clinton got married late this summer, she wore a Vera Wang dress specially made for the occasion. It was just lovely, white with some very tasteful beading around the waist. If you want your own, you can buy a licensed copy at David's Bridal for about 1200 dollars, but it doesn't go on sale until February, 2011.

Of course, you can get an unlicensed copy of the dress much sooner, and much cheaper too. Allen Schwartz, a designer who specializes in quick-to-market copies announced the day after the Clinton wedding that his knockoff would be ready in time for the holidays. His dresses usually go for about 400 bucks. It's basically legal to copy a fashion in the United States. Designers are able to trademark their logos, like the Nike Swoosh; that's why counterfeiting running shoes is illegal.

But you can't copyright the actual design of a garment, which means that something like a wedding dress, unadorned with Nike Swooshes or Louis Vuitton monograms, is rife for cheap, quick and legal imitation, legal for now, at least. A new bill called The Innovative Design Protection and Piracy Prevention Act would, for the first time, introduce copyright protection for U.S. fashion. But do we need that?

Law professor Susan Scafidi helped to draft the bill, and she says it differs from the laws protecting music and movies in significant ways.

SUSAN SCAFIDI: One is the very short three-year duration. The other is that it only protects things that are substantially identical to the original. So if you copyright a book, you also have rights to the movie. If you protect a fashion design via the new bill, all you have rights to are that design, and anything that has no more than merely trivial changes.

The reason why the standard is substantially identical and not absolutely line-for-line and stitch-for-stitch identical is that in the process of making cheaper copies, little cut corners creep in. So the idea is to capture something that won’t have major loopholes in it, but will protect really just the exact design.

BOB GARFIELD: But the thing about fashion is that it's about fashion, it's about all designs looking, you know, approximately the same, short hemlines. Paisley was big for a while.

SUSAN SCAFIDI: Oh, not for a long while, Bob. [LAUGHS]

BOB GARFIELD: L, l -

[LAUGHTER]

The sixties.

SUSAN SCAFIDI: Take off that tie, whatever you're doing. [LAUGHS]

BOB GARFIELD: Doesn't the nature of fashion itself make it difficult to determine what is theft and what is simply observing a trend?

SUSAN SCAFIDI: Not really. I agree with you that trends are so important in fashion, but there's a whole lot of variation within those themes, just like there are trends in other areas. When Dan Brown wrote The DaVinci Code suddenly there's a whole table at Barnes and Noble full of books on the Knights Templar or Mary Magdalene.

So there's a difference between a specific example of a trend, which could be protected, and a really general concept, which can never be protected.

BOB GARFIELD: I should say, to support your argument, that, the Chelsea Clinton incident that I described was not - an outlier. There's actually an entire industry of getting copycat designs to market as fast as possible. It's a big business.

SUSAN SCAFIDI: But the thing about copying fashion is that it's fine to be inspired by, for example, Chelsea Clinton's wedding dress. But if a law like the one that's proposed were in place, then we'd have not only six exact copies of Chelsea's wedding dress, we'd have every competitor having to add in a little bit of variation, which could give us, as consumers, more choice.

So the whole idea of intellectual property law is to stimulate innovation, even while it's allowing generalized inspiration from other things that are out there.

BOB GARFIELD: Now, of course, you've just articulated two of the gigantic objections to the law, one on the subject of innovation is once you protect a marketplace, that actually historically discourages innovation.

And the other thing is that you're talking about protecting consumers but, you know, if copycats are allowed to run wild, prices are driven down, down, down, down, down, which, I would think, at least nominally, would be way better for consumers, no?

SUSAN SCARFIDI: Well, no, I don't think so, actually, Bob. In Europe, there's been protection for a while. And in Paris, the capital of fashion, they've had protection for this stuff for over a hundred years.

And a lot of the major chains that have been so successful in disseminating something like knockoffs, but not quite, things that are inspired by the runaway, are European chains.

H&M, Zara, Top Shop, all of these folks live under a legal regime that doesn't allow exact copies, and yet, they're able to bring cutting edge fashion to the budget consumer. All of these big European chains, and some American companies, like Target, have been partnering with designers to create budget knockoffs. How much more incentive will those companies have to partner with designers, if a law like this were passed?

BOB GARFIELD: Now, there's another way to attack the premise of the legislation that you're supporting, that the ecosystem for fashion is doing actually very nicely and that to the extent that people knock off Paris runway designs very, very quickly, that the trends move more quickly and, therefore, constantly churning everybody's closet, so that they are constantly in need of new fashions, that while individual designers may be harmed in the short run, the overall ecosystem actually builds their business over time.

SUSAN SCAFIDI: I would disagree with you on that, predictably. From 30,000 feet up, the ecosystem of fashion looks pretty good. The stores are filled with clothes, people are dressing fashionably.

However, if you come down to the level of walking the streets and talking to designers, you'll see currently a lot of boarded-up boutiques and designers who are really struggling. If those people are driven out of business, in part because of the tough economy and in part because they can't get return on investment, because the copies get in the stores even more quickly than the original, because of changes wrought by the Internet, then they can't stay in business, they can't keep creating over the long run; the ecosystem really breaks down.

BOB GARFIELD: I guess we should make clear how the Internet has become a part of all this. Chelsea Clinton is photographed in her Vera Wang gown, it immediately is downloaded and before long there are factories in China that are churning out that design for Allen Schwartz, by the tens of thousands.

SUSAN SCAFIDI: Once upon a time, 50 years ago, to copy a design, you had to sneak into a show in Paris, memorize the design, sketch it, send it across the ocean to New York, have it manufactured. It took a few months for that design to get in stores.

Today you're absolutely right. Whether it's Chelsea Clinton in her gown or an actress at the Academy Awards, those photographs appear instantaneously on the Internet. Patterns are made the next day. Clothes are cut and sewn in the next week. Within a few weeks, those things are in stores, whereas, the legitimate designs don't make it on to the sales floor for months because of buying schedules.

This law would protect, in particular, the small designers, the designers whose logos are not yet recognizable, right?

As you pointed out, some of the big companies can slap their well-known initials on the outside of most clothing, and certainly many, many accessories, but for little designers, they can't do that. What's being stolen is not their names, it's their designs. And currently they have no way to stop that.

BOB GARFIELD: All right, I have one final question for you, Susan.

SUSAN SCAFIDI: All right.

BOB GARFIELD: Who are you wearing?

SUSAN SCAFIDI: Well, you usually have to call a 900 number for that kind of information. However – [LAUGHS]

BOB GARFIELD: [LAUGHS] I didn't say “what are you wearing.”

[LAUGHTER]

SUSAN SCAFIDI: Right now, I am actually wearing a couple of different emerging designers, one of whom is Emmett McCarthy from Season 2 of Project Runway. And my handbag is a young designer whose label is called Ananas. So, I'm definitely flying the flag for those out there struggling.

BOB GARFIELD: Well, I would say you look lovely but we are, at the moment, in different cities, so let me just thank you so much for joining us.

SUSAN SCAFIDI: Thank you.

BOB GARFIELD: Susan Scafidi is a professor of law at Fordham Law School and academic director of the Fashion Law Institute.